D.C. officials say they will decide this week whether to ask the Supreme Court to review a ruling striking down the city’s restrictions on carrying concealed guns — a choice that could determine the fate of similar laws in cities such as New York and Los Angeles and that is being closely watched by national gun-control activists.
The U.S. Court of Appeals for the D.C. Circuit in July rejected a District law that requires residents to demonstrate a "good reason" to obtain a permit to carry a gun in public. The same court last week declined the city's request to rehear the case.
Appealing the ruling to the Supreme Court would give the city a chance to save the law. But it would also open a window for the justices to further constrain the power of cities and states to regulate firearms.
The dilemma mirrors the choice city officials faced in 2007, when the same appeals court found D.C.'s handgun ban unconstitutional. Led by former mayor Adrian M. Fenty (D), the city took the case, District of Columbia v. Heller, to the high court — prompting a landmark decision that established for the first time that the Second Amendment guarantees an individual right to bear arms separate from military service.
That history looms large as D.C. elected officials weigh the risks of asking the Supreme Court to review the current law, which severely limits licenses to carry concealed weapons in the nation's capital by requiring applicants to show a "good reason to fear injury." If the justices decide to hear the case, similar restrictions in states including California, New York, Maryland, Massachusetts, Hawaii, New Jersey and Connecticut will hang in the balance.
“We’ve been here before,” said UCLA law professor and Second Amendment expert Adam Winkler.
After the D.C. Circuit's ruling against the handgun ban in 2007, he said, many gun-control advocates advised the District not to appeal the decision to the Supreme Court. "D.C. did not follow that advice, and the result was the Heller case," Winkler said.
Maryland Attorney General Brian E. Frosh (D) said the implications of the choice the District now faces could be similarly far-reaching.
“Really it’s the fate of the whole country you have in your hands when you’re making this call,” Frosh said. “You want to protect the people of D.C., but you don’t want to make bad law for the rest of the country.”
District officials say they expect to announce a decision by the end of the week.
D.C. Attorney General Karl A. Racine (D), who will make the call, said his office has been contacted by multiple state attorneys general and gun-control groups that believe an appeal would put laws in other parts of the country at risk. He declined to say whether he was leaning toward an appeal.
A three-judge panel of the D.C. Circuit ruled against the city in July, saying the restrictions are essentially an outright ban and unconstitutional. Last week, the full appeals court declined Racine's request to rehear the case.
The Supreme Court has declined to hear challenges to decisions by other circuit courts that upheld similar concealed-carry restrictions, including a recent case from California. The D.C. Circuit's ruling conflicts with those decisions, setting up the kind of split that often prompts the Supreme Court to hear a case.
City officials are debating what to do as much of the country is discussing the merits of gun control after the mass shooting in Las Vegas on Sunday.
D.C. Council Chairman Phil Mendelson (D), who has written most of the District’s gun laws for the past decade — including the ill-fated handgun ban — said he thought the city should continue to fight the Circuit Court ruling.
“Personally, I think it was a bad decision and we ought to appeal it,” he said.
Observers of the Supreme Court say it would be a mistake to try to predict how the justices would receive the current case, Wrenn v. District of Columbia.
Justice Anthony M. Kennedy, often the court’s swing vote, has been a reliable supporter of Second Amendment rights and sided with the majority that struck down the District’s handgun ban in 2008.
But legal experts said he might look more favorably on strict regulation of permits to carry concealed firearms than would a future justice nominated by President Trump. Kennedy, 81, is the longest-serving justice, and there have been rumors that he is considering retirement.
From a strategic perspective, some analysts said, it might make more sense for gun-control advocates to seek a decision now on whether the Second Amendment protects the right to carry concealed weapons outside the home — before Kennedy’s possible retirement — than to wait for a court that could be more hostile to gun regulation.
Indeed, the decision by the D.C. Circuit not to rehear the Wrenn case was somewhat surprising because six of the 10 judges who reviewed the city's request were nominated by Democratic presidents. But by taking a pass, the judges may have given the city a chance to fast-track the case directly to the high court.
"One might think they feel like, 'Better Anthony Kennedy than anyone else we're going to get,' " said Saul Cornell, a legal historian and professor at Fordham University.
“You never know what’s going on inside their heads,” he added. “But it does seem hard to come up with another coherent explanation.”